On
Sri
Lanka War Crimes, After Ban Ki-moon Gives Rajapaksa a Head Start, a
Partial Text
Emerges, Criticism of UN
By
Matthew
Russell Lee
WASHINGTON,
April
15, updated -- This is no way to
conduct, or release, an inquiry into
war crimes. Secretary General Ban Ki-moon, who claimed UN Panel of
Experts could travel to Sri Lanka due to President Mahinda
Rajapaksa's “flexibility,” belatedly got the report on April 12.
But
he only gave
it to Rajapaksa's government, not to the public.
That
day, Inner
City Press asked Ban's acting Deputy Spokesman Farhan Haq when it
would be released, and if the Panel had traveled to Sri Lanka and if
not, why not.
Inner
City Press
also asked about the UN's and lead spokesman Martin Nesirky's answers
about a reported meeting between Sri Lanka's Attorney General Mohan
Peiris and the Panel. Haq refused to answer any of these questions,
claiming that they would be answered in the report.
On
April 15 a
website in Sri Lanka published, somewhat confusingly, some 3500 words
of text, which we will reproduce below. Some of the paragraphs are
numbered
while others are not. There are misspellings, for example a
reference to “a climates of fear.”
The
text does say, bringing to mind for example the role of Ban's chief of
staff Vijay Nambiar in the so-called white flag killings:
“Considering
the response of the United Nations to the plight of civilians in the
Vanni during the final stages of the war in Sri Lanka and the
aftermath.. The Secretary-General should conduct a comprehensive
review of actions by the United Nations system during the war in Sri
Lanka and the aftermath, regarding the implementation of its
humanitarian and protection mandates.”
So is this the
report? Inner City Press immediately wrote to a UN official in a
position to know, but received no answer.
Ban's
Spokesperson's
office put out a “clarification” on Friday
afternoon - but it did not concern this Sri Lanka text. Rather,
it clarified a Ban statement about
Hungary seeking a seat on the UN Security Council.
The Sri Lanka
report confusion
is largely due to Ban's decision to give it to the Rajapaksa's first,
to allow them to denounce it and impact on when -- at the start of a
weekend -- and how it is
released and analyzed.
[Update
of
9 pm -- Ban Ki-moon's spokesperson's office belated put out this:
Sri
Lanka:
Panel of Experts Report
The
Secretary-General
is reviewing the Report of the Independent Panel of
Experts on Sri Lanka. A copy of the report has been furnished to the
Sri Lankan Government so that they can respond to the report; that
response could be published at the same time as the report is made
public. It is deeply regrettable that parts of the report found its
way prematurely to a Sri Lankan newspaper. The full report will be
released next week.
What
if this was
one of the Sri Lankan Government's responses?]
This is no way to
conduct, or release, an inquiry into war crimes -- and, as with
Ban's
and his close advisers' previous actions on Sri Lanka, it raises more
questions.
By contrast,
when a similar UN panel released a report on the death of Benazir
Bhutto of Pakistan, the panelists held a press conference to take
questions on their findings. The UN Spokesperson's Office, after some
tension, released the report.
Having
received no
or misleading
answers at the UN, Inner City Press on April
14 asked
US State Department spokesman Mark Toner:
Inner
City
Press: A question on Sri Lanka. There’s this report that was
commissioned by the UN about war crimes, I think, final stage of the
conflict. It’s been shown to the Government of Sri Lanka but still
hasn’t been given to the public? Does the U.S. have any – one,
does it think it should be made public? And what steps does it think
should be taken? Does it think that the internal --
MR.
TONER:
This is the UN Panel of Experts report?
Inner
City
Press: That’s correct. Yep.
MR.
TONER:
Yeah. I can get you more detail on that, but we, obviously,
have encouraged the Sri Lankan Government to engage in a process of
accountability and to also use this panel of experts and their
expertise, obviously, to address some of the questions.
Inner
City
Press: The government’s already kind of condemned the Panel,
and I wonder whether the U.S. thinks this Lesson Learnt and
Reconciliation Commission that the government set up itself – was
that sufficient? Or are you looking for more –
MR.
TONER:
And again, I think that we believe that the Lessons Learnt
commission and Reconciliation commission were good steps. But we
believe also that the UN Panel of Experts is a useful asset and
should be taken advantage of by the government.
As
appeared
online:
Report
of
the UNSG’s panel of experts on accountability in SL
April
15,
2011, 6:24 pm
Allegations
found
credible by the Panel
The
Panel’s
determination of credible allegations reveals a very
different version of the final stages of the war than that maintained
to this day by the Government of Sri Lanka. The Government says it
pursued a "humanitarian rescue operation" with a policy of
"zero civilian casualties". In stark contrast, the Panel
found credible allegations, which if proven, indicate that a wide
range of serious violations of international humanitarian law and
international human rights law were committed both by the Government
of Sri Lanka and the LTTE, some of which would amount to war crimes
and crimes against humanity. Indeed, the conduct of the war
represented a grave assault on the entire regime of international law
designed to protect individual dignity during both war and peace.
Specially
the
Panel found credible allegations associated with the final stages
of the war. Between September 2008 and 19 May 2009, the Sri Lanka
Army advanced its military campaign into the Vanni using large-scale
and widespread shelling causing large numbers of civilian deaths.
This campaign constituted persecution of the population of the Vanni.
Around 330,000 civilians were trapped into an ever decreasing area,
fleeing the shelling but kept hostage by the LTTE. The Government
sought to intimidate and silence the media and other critics of the
war through a variety of threats and actions, including the use of
white vans to abduct and to make people disappear.
The
Government
shelled on a large scale in three consecutive No Fire
Zones, where it had encouraged the civilian population to
concentrate, even after indicating that it would cease the use of
heavy weapons. It shelled the United Nations hub, food distribution
lines and near the International Committee of the Red Cross (ICRC)
ships that were coming to pick up the wounded and their relatives
from the beaches. It shelled in spite of its knowledge of the impact,
provided by its own intelligence systems and through notification by
the United Nations, the ICRC and others. Most civilian casualties in
the final phases of the war were caused by Government shelling.
The
Government
systematically shelled hospitals on the frontlines. All
hospitals in the Vanni were hit by mortars and artillery, some of
them were hit repeatedly, despite the fact that their locations were
well-known to the Government. The Government also systematically
deprived people in the conflict zone of humanitarian aid, in the form
of food and medical supplies, particularly surgical supplies, adding
to their suffering. To this end, it purposely underestimated the
number of civilians who remained in the conflict zone. Tens of
thousands lost their lives from January to May 2009, many of whom
died anonymously in the carnage of the final few days.
The
Government
subjected victims and survivours of the conflict to
further deprivation and suffering after they left the conflict zone.
Screening for suspected LTTE took place without any transparency or
external scrutiny. Some of those who were separated were summarily
executed, and some of the women may have been raped. Others
disappeared, as recounted by their wives and relatives during the
LLRC hearings. All IDPs were detained in closed camps. Massive
overcrowding led to terrible conditions, breaching the basic social
and economic rights of the detainees, and many lives were lost
unnecessarily. Some persons in the camps were interrogated and
subjected to torture. Suspected LTTE cadres were removed to other
facilities, with no contact with the outside world, under conditions
that made them vulnerable of further abuses.
Despite
grave
danger in the conflict zone, the LTTE refused civilians
permission to leave, using them as hostages, at times even using
their presence as a strategic human buffer between themselves and the
advancing Sri Lanka Army. It implemented a policy of forced
recruitment throughout the war, but in the final stages greatly
intensified its recruitment of people of all ages, including children
as young as fourteen. The LTTE forced civilians to dig trenches for
its own defenses, thereby contributing to blurring the distinction
between combatants and civilians and exposing civilians to additional
harm. All of this was done in a quest to pursue a war that was
clearly lost; many civilians were sacrificed on the altar of the LTTE
cause and its efforts to preserve its senior leadership.
From
February
2009 onwards, the LTTE started point-blank shooting of
civilians who attempted to escape the conflict zone, significantly
adding to the death toll in the final stages of the war. It also
fired artillery in proximity to large groups of internally displaced
persons (IDPs) and fired from, or stored military equipment near IDPs
or civilian installations such as hospitals. Throughout the final
stages of the war, the LTTE continued its policy of suicide attacks
outside the conflict zone. Even though its ability to perpetrate such
attacks was diminished compared to previous phases of the conflict,
it perpetrated a number of attacks against civilians outside the
conflict zone.
Thus,
in
conclusion, the Panel found credible allegations that comprise
five core categories of potential serious violations committed by the
Government of Sri Lanka: (i) killing of civilians through widespread
shelling; (ii) shelling of hospitals and humanitarian objects; (iii)
denial of humanitarian assistance; (iv) human rights violations
suffered by victims and survivors of the conflict, including both
IDPs and suspected LTTE cadre; and (v) human rights violations
outside the conflict zone, including against the media and other
critics of the Government.
The
Panel’s
determination of credible allegations against the LTTE
associated with the final stages of the war reveal six core
categories of potential serious violations: Ii) using civilians as a
human buffer; (ii) killing civilians attempting to flee LTTE control;
(iii) using military equipment in the proximity of civilians; (iv)
forced recruitment of children; (v) forced labour; and (vi) killing
of civilians through suicide attacks.
Accountability
Accountability
for
serious violations of international humanitarian or human rights
law is not a matter of choice or policy; it is a duty under domestic
and international law. These credibly alleged violations demand a
serious investigation and the prosecution of those responsible. If
proven, those most responsible, including Sri Lanka Army commanders
and senior Government officials, as well as military and civilian
LTTE leaders, would bear criminal liability for international crimes.
At
the
same time, accountability goes beyond the investigation and
prosecution of serious crimes that have been committed; rather it is
a broad process that addressed the political, legal and moral
responsibility of individuals and institutions for past violations of
human rights and dignity. Consistent with the international standards
mentioned above, accountability necessarily includes the achievement
of truth, justice and reparations for victims. Accountability also
requires an official acknowledgment by the State of its role and
responsibility in violating the rights of its citizens, when that has
occurred. In keeping with United Nations policy, the Panel does not
advocate a "one-size-fits-all" formula or the importation
of foreign models for accountability; rather it recognizes the need
for accountability processes to be defined based on national
assessments, involving broad citizen participation, needs and
aspirations. Nonetheless, any national process must still meet
international standards. Sri Lankaapproach to accountability should,
thus, be assessed against those standards and comparative experiences
to discern how effectively it allows victims of the final stages of
the war to realize their rights to truth, justice and reparations.
The
Government
has stated that it is seeking to balance reconciliation
and accountability, with an emphasis on restorative justice. The
assertion of a choice between restorative and retributive justice
presents a false dichotomy. Both are required. Moreover, in the
Panel’s view, the Government’s notion of restorative justice is
flawed because it substitutes a vague notion of the political
responsibility of past Government policies and their failure to
protect citizens from terrorism for genuine, victim-centred
accountability focused on truth, justice and reparations. A further
emphasis is clearly on the culpability of certain LTTE cadre; the
Government’s plan, in this regard, contemplates rehabilitation for
the majority and lenient sentences for the "hardcore" among
surviving LTTE cadre. The Government’s two-pronged notion of
accountability, as explained to the Panel, focusing on the
responsibility of past Governments and of the LTTE, does not envisage
a serious examination of the Government’s decisions and conduct in
prosecuting the final stages of the war or the aftermath, nor of the
violations of law that may have occurred as a result.
The
Panel
has concluded that the Government’s notion of accountability
is not in accordance with international standards. Unless the
Government genuinely addresses the allegations of violations
committed by both sides and places the rights and dignity of the
victims of the conflict at the centre of its approach to
accountability, its measures will fall dramatically short of
international expectations.
The
Lessons
Learnt and Reconciliation Commission
The
Government
has established the Lessons Learnt and Reconciliation
Commission as the cornerstone of its policy to address the past, from
the ceasefire agreement in 2002 to the end of the conflict in May
2009. The LLRC represents a potentially useful opportunity to begin a
national dialogue on Sri Lanka’s conflict; the need for such a
dialogue is illustrated by the large numbers of people, particularly
victims, who have come forward on their own initiative and brought to
speak with the Commission.
Nonetheless,
the
LLRC fails to satisfy key international standards of independence
and impartiality, as it is compromised by its composition and
deep-seated conflicts of Interests of some of its members. The
mandate of LLRC, as well as its work and methodology to date, are not
tailored to investigating allegations of serious violations of
international humanitarian and human rights law, or to examining the
root causes of the decades-long ethnic conflict; instead these focus
strongly on the wide notion of political responsibility mentioned
above, which forms part of the flawed and partial concept of
accountability put forth by the Government. The work to date
demonstrates that the LLRC has not conducted genuine truth-seeking
about what happened in the final stages of the armed conflict, not
sought to investigate systematically and impartially the allegations
of serious violations on both sides of the war, not employed an
approach that treats victims with full respect for their dignity and
their suffering, and not provided the necessary protection for
witnesses, even in circumstances of actual personal risk.
In
sum,
the LLRC is deeply flawed, does not meet International standards
for an effective accountability mechanism and, therefore, does not
and cannot satisfy the joint commitment of the President of Sri Lanka
and the Secretary-General to an accountability process.
Other
domestic
mechanisms
The
justice
system should play a leading role in the pursuit of
accountability, irrespective of functioning or outcomes of the LLRC.
However, based on a review of the system’s past performance and
current structure, the Panel has little confidence that it will serve
justice in the present political environment. This is due more to a
lack of political will than to lack of ability. In particular, the
independence of the Attorney-General has been weakened in recent
past, as power has been more concentrated in the Presidency.
Moreover, the continuing constitution of Emergency Regulations,
combined with the Prevention of Terrorism Act in its present form,
present a significant obstacle for the judicial system to be able to
address official wrongdoing while upholding human rights guarantees.
Equally, the Panel has seen no evidence that the military courts
system has operated as an effective accountability mechanism in
respect of the credible allegations it has identified or other crimes
committed in the final stages of the war.
Other
domestic
institutions that could play a role in achieving
accountability also demonstrate serious weaknesses. Over three
decades, commissions of inquiry have been established to examine a
number of serious human rights issues. While some have served
important fact-finding goals, overwhelmingly these commissions have
failed to result in comprehensive accountability for the violations
identified. Many commissions have failed to produce a public report
and recommendations have rarely been implemented. The Human Rights
Commission of Sri Lanka could also potentially contribute to
advancing certain aspects of accountability, but the Panel still has
serious reservations and believes that the Commission will need to
demonstrate political will and resourcefulness in following up on
cases of missing persons and in monitoring the welfare of detained
persons.
Other
obstacles
to accountability
During
the
course of its work, the Panel observed that there were several
other contemporary issues in Sri Lanka, which if left un-addressed,
will deter efforts towards genuine accountability and may undermine
prospects for durable peace in consequence. Most notably, these
include: (i) triumphalism on the part of the Government, expressed
through its discourse on having developed the means and will to
defeat "terrorism", thus ending Tamil aspirations for
political, autonomy and recognition, and its denial regarding the
human cost of its military strategy; (ii) on-going exclusionary
policies, which are particularly deleterious as political, social and
economic exclusion exclusion based on ethnicity, perceived or real,
have been at the heart of the conflict (iii) the continuation of
wartime measures, including not only the Emergency Regulations and
the Prevention of Terrorism Act, mentioned above, but also the
continued militiarisation of the former conflict zone and the use of
paramilitary proxies, all of which perpetuate a climate of fear,
intimidation and violence; (iv) restrictions on the media, which are
contrary to democratic governance and limit basic citizens’ rights;
and (v) the role of the Tamil Diaspora, which provided vital moral
and material support to the LTTE over decades, and some of whom
refuse to acknowledge the LTTE’s role in the humanitarian disaster
in the Vanni, creating a further obstacle to accountability and
sustainable peace.
An
environment
conducive to accountability, which would permit a candid
appraisal of the broad patterns of the past, including the root
causes of the long-running ethno-nationalist conflict, does not exist
at present. It would require concrete steps towards building an open
society in which human rights are respected, as well as a fundamental
shift away from triumphalism and denial towards a genuine commitment
to a political solution that recognizes Sri Lanka’s ethnic
diversity and the full and inclusive citizenship of all of its
people, including Tamils as the foundation for the country’s
future.
International
role
in the protection of civilians
During
the
final stages of the war, the United Nations political organs and
bodies failed to take actions that might have protected civilians.
Moreover, although senior international officials advocated in public
and in private with the Government that it protect civilians and stop
the shelling of hospitals and United Nations or ICRC locations, in
the Panel’s view, the public use of casualty figures would have
strengthened the call for the protection of civilians while those
events in the Vanni were unfolding. In addition, following the end of
war, the Human Rights Council may have been acting on incomplete
information when it passed its May 2009 resolution on Sri Lanka.
Recommendations
In
this
context, the Panel recommends the following measures, which it
hopes as a whole, will serve as the framework for an ongoing and
constructive engagement between the Secretary-General and the
Government of Sri Lanka on accountability. They address the various
dimensions of accountability that the Panel considers essential and
which will require complementary action by the Government of Sri
Lanka, the United Nations and other parties.
Recommendation
1:
Investigations
A.
In
light of the allegations found credible by the Panel, the
Government of Sri Lanka, in compliance with its international
obligations and with a view to initiating an effective domestic
accountability process, should immediately commence genuine
investigations into these and other alleged violations of the
international humanitarian and human rights law committed by both
sides involved in the armed conflict.
B.
The
Secretary-General should immediately proceed to establish an
independent international mechanism, whose mandate should include the
following concurrent functions:
(i)
Monitor
and assess the extent to which the Government of Sri Lanka is
carrying out an effective domestic accountability process, including
genuine investigations of the alleged violations, and periodically
advice the Secretary-General on its findings;
(ii)
Conduct
investigations independently into the alleged violations,
having regard to genuine and effective domestic investigations; and
(iii)
Collect
and safeguard for appropriate future use information provided
to it, which is relevant to accountability for the final stages of
the war, including the information gathered by the Panel and other
bodies in the United Nations system.
Recommendation
2:
Other measures to advance accountability
A.
The
Government of Sri Lanka should implement the following short-term
measures, with a focus on acknowledging the rights and dignity of all
of the victims and survivors in the Vanni:
(i)
End
all violence by the State, its organs and all paramilitary and
other groups acting as surrogates of or tolerated by, the State;
(ii)
Facilities
the recovery and return of human remains to their families
and allow for the performance of cultural rites for the dead;
(iii)
Provide
death certificates for the dead and missing, expeditiously
and respectfully, without charge, when requested by family members,
without compromising the right to further investigations and civil
claims;
(iv)
Provide
or facilitate psycho-social support for all survivors,
respecting their cultural values and traditional practices;
(v)
Release
all displaced persons and facilitate their return to their
former homes or provide for resettlement, according to their wishes;
and
(vi)
Continue
to provide interim relief to assist the return of all
survivors to normal life.
B.
The
Government of Sri Lanka should investigate and disclose the fate
and location of persons reported to have been forcibly disappeared.
In this regard, the Government of Sri Lanka should invite the Working
Group on Enforced and Involuntary Disappearances to visit Sri Lanka.
C.
In
light of the political situation in the country, the Government of
Sri Lanka should undertake an immediate repeal of the Emergency
regulations and modify all those provisions of the Prevention of
Terrorism Act that the inconsistent with Sri Lanka’s international
obligations, and take the following measures regarding suspected LTTE
members and all other persons held under these and other provisions:
(i)
Public
the names of all of those currently detained, whatever the
location of their detention, and notify them of the legal basis of
their detention;
(ii)
Allow
all detainees regular access to family members and to legal
counsel;
(iii)
Allow
all detainees to contest the substantive justification of their
detention in court;
(iv)
Charge
those for whom there is sufficient evidence of serious crimes
and release all others, allowing them to reintegrate into society
without further hindrance.
D.
The
Government of Sri Lanka should end state violence and other
practices that limit freedoms of movement, assembly and expression,
or otherwise contribute to a climate of fear.
Recommendation
3:
Longer term accountability measures
While
the
current climate is not conductive to an honest examination of the
past, in the longer term, as political spaces are allowed to open,
the following measures are needed to move towards full accountability
for actions taken during the war:
A.
Taking
into account, but distinct from the work of the LLRC, Sri
Lanka should initiate a process, with strong civil society
participation, to examine in a critical manner: the root causes of
the conflict, including ethno-nationalist extremism on both sides;
the conduct of the war and patters of violations; and the
corresponding institutional responsibilities.
B.
The
Government of Sri Lanka should issue a public, formal
acknowledgement of its role in and responsibility for extensive
civilian casualties in the final stages of the war.
C.
The
Government of Sri Lanka should institute a reparations programme,
in accordance with international standards, for all victims of
serious violations committed during the final stages of the war, with
special attention to women, children and particularly vulnerable
groups.
Recommendations
4:
United Nations
Considering
the
response of the United Nations to the plight of civilians in the
Vanni during the final stages of the war in Sri Lanka and the
aftermath:
A.
The
Human Rights Council should be invited to reconsider its May 2009
Special Session Resolution (A/HRC/8-11/L. 1/Rev. 2) regarding Sri
Lanka, in light of this report.
B.
The
Secretary-General should conduct a comprehensive review of
actions by the United Nations system during the war in Sri Lanka and
the aftermath, regarding the implementation of its humanitarian and
protection mandates.
The
Panel’s
report and its advice to the Secretary-General, as
encapsulated in these recommendations, are inspired by the courage
and resilience of victims of the war and civil society in Sri Lanka.
If followed, the recommendations would comprise a genuine process of
accountability that would satisfy the joint commitment and would set
Sri Lanka on the course of justice, dignity and peace.
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